One of the delights of social media is that from time to time there is a sudden rush of superb contributions on a single topic, and then people move on with equal precipitousness to something else.
Two days ago the barrister Gordon Exall prompted Paul Magrath, of the Incorporated Council of Law Reporting, to host such a happening, when contributions were sought for the best opening lines in a judgment of the English courts. The result is here, and in this blog I have tidied up the results, added a few more of Lord Denning’s and a couple of late chrysanthemums, including, astonishingly, one of my own (although strictly a non-qualifier, because the purple passage is in para 2, not para 1), and ignored the geographical limitations in two instances and certain other limitations [“BAILII only”, and “not Lord Denning again”] which featured in the discussion.
Anyhow, here are the results. First, the qualifiers – and then a few straggling non-qualifiers from paragraphs later than paragraph 1. Nine other contributions, which came to my attention after I first published this blog, have now been published separately.
Mr Justice Megarry:
Errol Flynn was a film actor whose performances gave pleasure to many millions. On June 20, 1909, he was born in Hobart, Tasmania, and on October 14, 1959, he died in Vancouver, British Columbia. When he was seventeen he was expelled from school in Sydney, and in the next 33 years he lived a life which was full, lusty, restless and colourful. In his career, in his three marriages, in his friendships, in his quarrels, and in bed with the many women he took there, he lived with zest and irregularity. The lives of film stars are not cast in the ordinary mould, and in some respects Errol Flynn’s was more stellar than most. When he died, he posed the only question that I have to decide: where was he domiciled at the date of his death?
Lord Denning MR:
It happened on April 19, 1964. It was bluebell time in Kent.
Lord Denning MR
Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy was a farmer there. His home was Yew Tree Farm: it went back 300 years .
Lord Denning MR:
In 1966 there was a Scripture Rally in Trafalgar Square. A widower, Mr. Honick, went to it. He was about 63. A Widow, Mrs. Rawnsley, also went. She was about 60. He went up to her and introduced himself. He was not much to look at. “He looked like a tramp”, she said. “He has been picking up fag ends.” They got on well enough, however, to exchange addresses. His was 36 Queen’s Road, Waltham Cross, Hertfordshire. Hers was 74 Downton Avenue, Streatham Hill, London, S. W. 2. Next day he went to her house with a gift for her. It was a rose wrapped in a newspaper. Afterwards their friendship grew apace. She was sorry for him, she said. She smartened him up with better clothes. She had him to meals. She went to his house: he went to hers. They wrote to one another in terms of endearment. We were not shown the letters, but Counsel described them as love letters.
Lord Denning MR:
I will call her Janet because she has had four surnames already. She was married for the first time at the age of 18; but that marriage only lasted about a year. Next at the age of 19 she met a man, Stuart Eves. He was a married man. They could not marry. So they started living together. She took his name and had two children by him. After 4 1/2 years that relationship broke down. Now both have got divorces from their former spouses and have remarried. The question arises now as to the house where they lived.
Lord Denning MR:
In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, he has issued an injunction to stop them.
Lord Denning MR:
When I was young, a sandwich-man wearing a top-hat used to parade outside these courts with his boards back and front, proclaiming ‘Arbitrate, don’t litigate.’ It was very good advice so long as arbitrations were conducted speedily: as many still are in the City of London. But it is not so good when arbitrations drag on for ever.
Lord Justice Donaldson:
On November 15, 1978, the plaintiff Alan George Parker, had a date with fate – and perhaps with legal immortality. He found himself in the international executive lounge at terminal one, Heathrow Airport. And that was not all. He also found a gold bracelet lying on the floor.
Lord Justice Mantell:
1.Some time between midnight and 1 o’clock in the morning on 30th August 2001 a burglar alarm went off at Whetstone golf club in Leicestershire. It was not the sort of burglar alarm which can be heard in the neighbourhood, but one which connected with the police station, and as a result, police officers arrived at the club to find on cursory examination, that it did not appear that the club house itself had been interfered with. However, on looking around, they found in the car park to the golf club, not too distant from the club house, two men dressed in frogman, or diving suits, and in possession of a sack, it can be described in no other way, of very wet golf balls.
Lord Justice Ward:
1.The appellant is a lap dancer. I would not, of course, begin to know exactly what that involves. One can guess at it, but could not faithfully describe it. The Judge tantalisingly tells us, at paragraph 21 of his judgment, that the purpose is “to tease but not to satisfy”.
Lord Justice Jacob:
1.It is one of the glories of this country that every now and then one of its citizens is prepared to take a stand against the big battalions of government or industry. Such a person is Lisa Ferguson, the claimant in this case. Because she funds the claim out of her personal resources, she does so at considerable risk: were she ultimately to lose she would probably have to pay British Gas’s considerable costs.
Lord Justice Ward:
1.This is a case about bats and badgers, Beeching and bus-ways. In 1969 Lord Beeching caused the closure of the 128 year old railway line between Fareham and Gosport in Hampshire. Since then it has become overgrown with trees, shrubs and other vegetation. Bats and badgers have moved in. Now Hampshire County Council has granted Transport for South Hampshire planning permission for a bus route along the old track. A local resident, Mrs Vivienne Morge, challenges that permission asserting that it will disturb the bats and badgers and have a serious adverse impact on the environment.
Mr Justice Males:
1.Paul Baxendale-Walker (who also goes by the name Paul Chaplin) was formerly a barrister and then a solicitor specialising in tax law. Some people might have found that exciting enough, but since 2005, when he acquired and ran a company making pornographic films in which he also starred, he has been active in the sex industry. He describes himself now as a wealthy man living a playboy lifestyle. Those who are interested can apparently find details in the pages of Loaded magazine, which he purchased in May 2012. His lifestyle involves essentially casual relationships with multiple sexual partners, a group or club of women known as his “hunny bunnies” to whom, in return for their sexual favours, he makes lavish gifts, including money, clothes and holidays, as well as providing flats and cars for their use.
Miss Recorder Amanda Michaels:
1.This is a case relating to design rights and registered design in a sling and a portable frame from which such a sling can be hung, for use during sexual activities involving bondage.
1.Overnight on 29th January 2012 the Defendant, Fatih Ozcan had a dream. In his dream he dreamt that he was holding a large bundle of cash and standing in front of him was the Claimant, Hayati Kucukkoylu, his employer. The Defendant is a strong believer in the power of dreams and interpreted this to mean that he and the Claimant would win the lottery. On 30th January 2012 a ticket was bought for the Euromillions Lottery which won the raffle prize of £1 million. Surprising though this history may be, it is not substantially disputed. What is disputed is who bought the ticket and who is entitled to the winnings.
Lord Justice Tomlinson:
1.By an Order of 21 March 2014 Mr David Donaldson QC, sitting as a Deputy Judge of the Chancery Division, to use his own language at paragraph 20 of his judgment giving his reasons therefor, ordered “implementation of an arrangement lacking (as pleaded, and perhaps in fact) agreement of an important element.” In consequence he attributed to the Appellant Mr Thevarajah and to the First, Second and Fourth Respondents, respectively Mr Riordan and the two Messrs Burke an agreement which, demonstrably, they had not made. The question which arises on this appeal is whether he was right to do so. There is something very wrong with our legal system if the answer to that question is yes.
Mr Justice Norris:
1.This application by the joint administrators of Dent Company (a partnership) (“the Partnership”) affords the opportunity to consider the application of the equitable doctrines of marshalling and subrogation in relation to a fixed charge over a dog.
HH Judge Purle QC:
1.I have an application before me brought on behalf of a company called Officeserve Technologies Limited (“the company”). The company has achieved what must be the stellar ambition of many of generating a turnover, I am told, of £52,000 per annum and spending £450,000 a month doing so. That is of itself astonishing and it is not surprising to find it appearing before me today on an application made by its directors seeking some form of insolvency process: what is sought is the appointment of an Administrator.
And now the non-qualifiers, drawn from (or including) paragraphs other than the first:
Lord Denning MR
To some this may appear to be a small matter, but to Mr. Harry Hook it is very important. He is a street trader in the Barnsley market. He has been trading there for some six years without any complaint being made against him; but, nevertheless, he has now been banned from trading in the market for life. All because of a trifling incident. On Wednesday; October 16, 1974, the market closed at 5:30. So were all the lavatories, or “toilets” as they are now called. They were locked up. Three-quarters of an hour later, at 6.20, Harry Hook had an urgent call of nature. He wanted to relieve himself. He went into a side street near the market and there made water, or ”urinated”, as it is now said. No one was about except one or two employees of the council, who were cleaning up. They rebuked him. He said: “I can do it here if I like”. They reported him to a security officer who came up.
We are not told the words used by the security officer. I expect they were in language which street traders understand. Mr Hook made an appropriate reply. Again, we are not told the actual words, but it is not difficult to guess. I expect it was an emphatic version of ‘You be off’. At any rate, the security officer described them as words of abuse. Touchstone would say the security officer gave the ‘reproof valiant’ and Mr Hook gave the ‘countercheck quarrelsome’ (As You Like It V, iv).
Windeyer J (New South Wales Supreme Court)
45 The question here to be decided is whether if the relationship existed in December 2005 it came to an end after that and prior to death. Here two matters are important. The first is the relationship with Ms Burton and the second is the agreement for transfer of shares and interest in property. The defendant said that she did not know that the person, Buda, was a woman until Rita told her that. She thought, she said, that this person was some sort of male spiritual guru. Although there was really no cross-examination on this I find this evidence difficult to accept. The defendant knew that the deceased was not always faithful to her. She knew that he went around with other women. I have found that she knew of the relationship with Mrs O’Brien and she knew of past relationships with women called Florence and Deborah. She said she was concerned about his continuing relationship with Deborah. It is unlikely that once the visits extended to a few days every two weeks that the defendant could have thought that they were to visit a male masseur and spiritual friend. But this does not really matter as one party can end a de facto relationship. Thus the question has to be decided whether the relationship of the deceased with Ms Burton was just a dalliance within a de facto relationship or whether it was more and ended the relationship of living as a couple.
46 It is an extraordinary relationship where a man can share a bottle of champagne by candlelight in bed and have sexual relations with one woman on the morning of his trip north to visit another woman and yet will die the next day in bed with that other woman to whom he had proposed marriage and with whom he has discussed a marriage date to take place some months later. Strange as it is I am of the opinion that whatever commitment there was to a joint life as a couple by the defendant, there was no such feeling or interest by the deceased at the time he died, who by then used the defendant as he wished and did as he wished.
Lord Justice Wilson:
3.The judge released his judgment for publication but on an anonymised basis, i.e. as J v. J. Its citation number is  EWHC 2654. It has 484 paragraphs. An article on the judgment, by Mr Ashley Murray of counsel, has recently been published in  Family Law, Vol 40, at 1111. Mr Murray introduced his article as follows:
“There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Charles J. One of his most recent is J v. J …”
Mr Murray’s introductory sentences were witty and brave. In respect at any rate of the judgment in the present case, they were also, I am sorry to say, apposite. The judgment is a monument to the intellectual energy of the judge. Nevertheless, notwithstanding my extreme personal discomfort in saying so, I feel driven to describe it as far too long, too discursive and too unwieldy. I have devoted days to trying to understand it. So have the parties’ advisers, at substantial further cost to the parties themselves. With respect to a colleague whom I greatly admire, I refuse to accept that our modern principles of ancillary relief are as complex as the content of the judgment of Charles J implies.
Sir Alan Ward:
30.I am afraid, therefore, that Randy Northrop must lose and the appeal must be dismissed. I have a sneaking sympathy for him because he did not use many of the services which council tax is supposed to provide and it may have been harsh to list him in band A. But all of that is of no moment. He had indicated that he was soon to move and he has moved from the mooring. He has thrown off the bow lines and sailed away from the safe harbour though whether to catch the trade winds in his sails or just withstand the buffetings of the gales in the English Channel I know not. In as much as this is the penultimate judgment I shall write after 18 years in the Court of Appeal, I am a kindred spirit who has sailed away from the safe harbour of the Royal Courts of Justice, not at all sure how to explore, or what to dream or what I am about to discover.
Justice E.Morgan (Ontario Superior Court):
23.In my view, the parties do not need a judge; what they need is a rather stern kindergarten teacher. I say this with the greatest of respect, as both the Plaintiffs and the Defendants are educated professionals who are successful in their work lives and are otherwise productive members of the community. Despite their many advantages in life, however, they are acting like children. And now that the matter has taken up an entire day in what is already a crowded motions court, they are doing so at the taxpayer’s expense.
1.The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years.
2.The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias. As Lord Radcliffe observed in Davis Contractors Ltd v Fareham Urban District Council:
“The spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself.”
3.It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would be misconceived for a party to seek to lead evidence from actual passengers on the Clapham omnibus as to how they would have acted in a given situation or what they would have foreseen, in order to establish how the reasonable man would have acted or what he would have foreseen. Even if the party offered to prove that his witnesses were reasonable men, the evidence would be beside the point. The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard.
4.In recent times, some additional passengers from the European Union have boarded the Clapham omnibus. This appeal is concerned with one of them: the reasonably well-informed and normally diligent tenderer.
District Judge Swindley:
2.It is an occupier’s liability claim. The Claimant alleges that she went to the Defendant’s A & E Department, and whilst there she slipped on a leaflet on the floor (quite probably a solicitor’s leaflet advertising their services) as a result of which she fell and incurred injuries which are set out in the report, which is on the file, from Dr Ballin.
And, finally, a wayside flower of mine found its way into the “also rans” (through being para 2, not para 1):
Lord Justice Brooke:
2.On the evening of Friday 29th October 2004 [Ms Hartless’s] eight-year old daughter was looking forward to joining the other Brownies who had been chosen to represent their pack on a float at the village carnival the following day. Her son CH was looking forward to his seventh birthday party the following Monday. She had never received any notice or other warning from her landlords that her behaviour, or the behaviour of Mr Harris or her children, was such that the family might be at risk of being evicted from their home. It was therefore an enormous surprise to her when representatives of her landlords called at her house without prior notice at about 9 pm that evening, accompanied by the police and a television cameraman.
For those who are not familiar with the remarkable history we were discussing, perhaps it would be forgivable if I also added paras 3-10:
The claimants’ representatives brought with them two large bundles of court papers. The five pages which required her most immediate attention contained two court orders. The first, an Injunction Order, contained her name and address in a box on the first page. It was headed “In the Aldershot and Farnham County Court” and purported to have been issued in an action between the claimants and a man we will call Paul D. It bore in bold type the precept “If you do not obey this order you will be guilty of contempt of court and you may be sent to prison”. It continued, confusingly:
“On 29th October 2004 the court considered an application for an injunction
The Court ordered that Carl Harris
Is forbidden (whether by herself or by instrucing [sic] or encouraging any other (3) person)
(1) Having left Midhurst Road, Liphook, from entering or being in any part of the area shown edged in red on the plan attached to this order.
(2) From assaulting, threatening, abusing or otherwise causing a nuisance or annoyance to:
(a) Any person residing in or occupying housing accommodation in or in the neighbourhood of Midhurst Road, Liphook.
(b) Any person carrying out a lawful activity in the neighbourhood of Midhurst Road, Liphook.
(3) From contacting any of the following persons:
[Six names followed]
This order shall remain in force until the 29 April 2005 at 4 pm unless before then it is varied or discharged.
The Court will re-consider the application and whether the order should continue at a further hearing at Aldershot and Farnham County Court, 78/82 Victoria Road, Aldershot GU11 1SS on Thursday 04th November 2004 at 14.00 pm.
If you do not attend at the time shown the court may make an injunction order in your absence. You are entitled to apply to the court to reconsider the order before that day.
And it is ordered that
Susan Collette [sic] Hartless shall:
(4) Leave Midhurst Road, Liphook by 6.00 pm on 29 October 2004.
(5) Exercise proper and reasonable parental control over [AH, BH, CH and DH] in order to prevent them from behaving in any of the ways referred to in this order.
It is further ordered that
(6) A Power of Arrest pursuant to Section 153C of the Housing Act 1996 be attached to paragraphs (1) (2) (3) (4) of this order.
(7) The costs of this application reserved
THIS ORDER SHALL REMAIN IN FORCE UNTIL THE 29 April 2005 unless before then it is revoked by further order of the court.”
The plan attached to the order embraced a large part of Liphook.
At the foot of each page there is the information that the court office is open between 10am to 4pm Monday to Friday, and in the line above, in miniscule print, the words “If you do not understand anything in this order you should go to a Solicitor, Legal Advice Centre or a Citizens’ Advice Bureau.”
This order was accompanied by another order entitled “Anti-Social Behaviour Injunction: Power of Arrest”. This second order referred to the respondent in the case as Amanda [D]. It purported to replicate the relevant parts of the other order, but it limited the power of arrest to the requirements set out in paragraphs (1) (2) and (3) of that order. This order referred to Susan Collette Harris, and not to Carl Harris. Apart from the misspelling of the words “part” [aprt], “area” [aream], “assaulting” [assulting] and “occupying” [occuping], it contained no particularly noteworthy features.
The orders addressed to Mr Harris were in identical terms (with his name in the box) so that the Injunction Order correctly identified him as the person restrained. Orders in the same terms were made against Mr and Mrs D, who have six children.
Although these orders were served three hours after the time when Ms Hartless and her four children were required to vacate their home and leave the Liphook neighbourhood, they had nowhere to go. District Judge Ackner, who had made these orders at 12.30 pm that day, did not ask the claimants what arrangements they had made to tell the local housing office that they would have a large homeless family (in fact, if one includes the D family, two large homeless families, including ten children) on their hands later that day. In the circumstances, long after dark on a late October evening, the police were disinclined to see the orders complied with immediately, and the appellants were advised to contact a solicitor.
They were lucky enough to contact a solicitor who was willing to drive over from Blackwater at 9.30 pm to advise them. She said, understandably, that when she read through the very large bundle of papers she could not believe that the situation was as it was being presented. It was clear to her that the vast majority of the evidence related to a quite different family. Her two clients were beside themselves with anxiety, and when they explained that there was nowhere that they could take the children, she decided that the matter could not wait until the court opened two and a half days later. She therefore proceeded to obtain an order from a High Court judge, made over the telephone and confirmed by fax by Stanley Burnton J at about 1.30 am on the Saturday morning, which stayed the effect of the ouster and exclusion parts of the orders until the matter could be considered on notice at the county court the following week.
What the judgment does not record is that the solicitor in question, who had to drive across most of Surrey to reach her unknown new client, was sufficiently concerned about her safety that she persuaded her luckless husband to turn out and accompany her. The judgment does give credit to Mr Justice Stanley Burnton’s prompt response at 1.30 am on a Saturday morning (what other High Court duty judge sleeps with a fax machine in his bedroom?), but it skates over the fact that although he was purporting to act in an appellate capacity, he almost certainly did not possess the necessary jurisdiction, since appeals from district judges lay to a circuit judge and not to him. Like any sensible HCJ, he turned a Nelsonian blind eye to the point (if he was sufficiently wide awake to have appreciated it) and he did not require the solicitor to embark on a search for a similarly receptive circuit judge in the small hours of that Saturday morning.
It will be noted that I was sitting as Vice-President of the Court of Appeal with a future Lord Chief Justice (Lord Judge) and a future Supreme Court Justice/ Master of the Rolls (Lord Dyson) – both very old friends.
By chance the case coincided with a pilot experiment in filming the proceedings of the two divisions of the Court of Appeal. Judges far more charismatic than I were selected for this duty (Lord Phillips MR in the Civil Division and Lord Justice Kennedy in the Criminal Division), but Lord Phillips’s court ran out of work, and I took over for the last two days. On the first day Cherie Booth QC was arguing the case of the schoolgirl who insisted on breaking school rules by wearing a jilbab, and on the second day we had to disentangle what had gone wrong in the saga of Ms Hartless, her four children and the eviction order served at 9 pm on a Friday night.
The man in charge of the filming commented that the proceedings in my court were a lot more interesting than the days that had been spent arguing a reinsurance appeal connected with the Exxon Valdez oil spillage which had been his lot in Lord Phillips’s court.
 Gordon Exall tweets as @CivilLitTweet
 Paul Magrath tweets as @MaggotLaw. He is the Head of Product Development and Online Content at ICLR
 One from Ontario and the other from New South Wales
 In re Flynn, decd  1 WLR 103
 Hinz v Berry  2 QB 40.
 Lloyd’s Bank Ltd v Bundy  QB 326.
 Burgess v Rawnsley  EWCA Civ 2
 Eves v Eves  EWCA Civ 3, reported at  1 WLR 1338,
  EWCA Civ 6,  QB 966
 Bremer Vulkan v South Indian Shipping  AC 909
 Parker v British Airways Board  QB 1004
 R v Rostron & anr  EWCA Crim 2206
 Sutton v Hutchinson  EWCA Civ 1773
 Ferguson v British Gas Trading Ltd  EWCA Civ 46. On this occasion the court stood up for the ordinary citizen, refusing British Gas’s application to strike out Ms Ferguson’s claim, alleging unlawful harassment by their debt recovery department.
 Morge, R (on the application of) v Hampshire County Council  EWCA Civ 608,  PTSR 1882.
 Sargespace Ltd v Eustace  EWHC 2944 (QB),
 Uwug Ltd & Anor v Ball (t/a Red)  EWPCC 35
 Kucukkoylu v Ozcan  EWHC 1972 (QB)
 Thevarajah v Riordan & Ors  EWCA Civ 41
 McLean & Anor v Trustees of the Bankruptcy Estate of Dent & Ors  EWHC 2650 (Ch) (summarised at  WLR(D) 157)
 Re Officeserve Technologies Ltd  EWHC 906 (Ch)
 R v Barnsley Metropolitan Borough Council ex p Hook  1 WLR 1052.
 Quijarro v Robson  NSWSC 818 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2008/818.html?stem=0&synonyms=0&query=Quijarro%20robson
 Jones v Jones  EWCA Civ 41,  Fam 1
 Reeves v Northrop  EWCA Civ 362, reported at :  1 WLR 2867
 Morland-Jones v Taerk, 2014 ONSC 3061
  AC 696, 728
 Healthcare at Home Ltd v The Common Services Agency  UKSC 49,  PTSR 1081
 Chapman v Tameside Hospitals NHS Foundation Trust
 Moat Housing Group South Ltd v Harris and Hartless  EWCA Civ 287
 District Judge Ackner, who later became Her Honour Judge Ackner, retired from the Bench this week.
 From memory, it was the only occasion on which I sat with Igor Judge, who usually sat in crime, during our ten years together on the Court of Appeal.
6 thoughts on “Judgments: the best opening lines – and a few more”
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Greetings! Beautiful blog
There’s always R v Collins:
“This is about as extraordinary a case as my brethren and I have ever heard either on the bench or while at the bar…
Let me relate the facts. Were they put into a novel or portrayed on the stage, they would be regarded as being so improbable as to be unworthy of serious consideration and as verging at times on farce.
At about 2 o’clock in the early morning of Saturday, July 24, 1971, a young lady of 18 went to bed at her mother’s home in Colchester. She had spent the evening with her boyfriend. She had taken a certain amount of drink, and it may be that this fact affords some explanation of her inability to answer satisfactorily certain crucial questions put to her at the trial…”
It never flags thereafter!
Thank you, Charles. I had this case in mind when I wrote the blog but without easy access to text books or law reports which are not on BAILII, I had no means of tracking it down. Lord Justice Edmund Davies puts the critical issue towards the end of the judgment:
“We are compelled to say that we do not think the judge by these observations made sufficiently clear to the jury the nature of the second test about which they had to be satisfied before this young man could be convicted of the offence charged. There was no doubt that his entry into the bedroom was “intentional.” But what the accused had said was, “She knelt on the bed, she put her arms around me and then I went in.”
If the jury thought he might be truthful in that assertion, they would need to consider whether or not, although entirely surprised by such a reception being accorded to him, this young man might not have been entitled reasonably to regard her action as amounting to an invitation to him to enter. If she in fact appeared to be welcoming him, the Crown do not suggest that he should have realised or even suspected that she was so behaving because, despite the moonlight, she thought he was someone else. Unless the jury were entirely satisfied that the defendant made an effective and substantial entry into the bedroom without the complainant doing or saying anything to cause him to believe that she was consenting to his entering it, he ought not to be convicted of the offence charged.
The point is a narrow one, as narrow maybe as the window sill which is crucial to this case. But this is a criminal charge of gravity and, even though one may suspect that his intention was to commit the offence charged, unless the facts show with clarity that he in fact committed it he ought not to remain convicted.”
Many thanks for this wonderful blog, Henry – here is an opening line you might enjoy from Lord Justice Moses in R (Mondelly) v The Commissioner of Police for the Metropolis  EWHC 2370 (Admin):
“Just a spliff, man”, responded Mr Mondelly, when he was arrested by two police officers at his home at 9.30 p.m. on 16 February 2005. He was unfortunate. The two police officers were investigating a burglary but had gone to the wrong address. When they knocked on the front door of Mr Mondelly’s flat, he opened the door and invited them inside. The police officers say that they could smell cannabis. They tried Mr Mondelly’s keys in the door to prove that he lived there. He did live there. The police officers noticed a cannabis cigarette, a grinder, one small cube of cannabis resin and what they believed to be herbal cannabis. They arrested him for allowing his premises to be used for the smoking of cannabis …”